Citation Nr: 0320836
Decision Date: 08/19/03 Archive Date: 08/25/03
DOCKET NO. 99-12 993 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to service connection for bilateral
retropatellar pain syndrome, claimed as secondary to service-
connected Crohn's disease.
2. Entitlement to service connection for a disorder
manifested by back pain, claimed as secondary to service-
connected Crohn's disease.
3. Entitlement to service connection for a disorder
manifested by bilateral shoulder pain, claimed as secondary
to service-connected Crohn's disease.
4. Entitlement to an increased initial rating for an
unfused, non-union old fracture of the left navicular bone,
with degenerative changes, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Elizabeth Spaur, Associate Counsel
INTRODUCTION
The veteran had active service from September 1977 to
September 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1998 decision by the
Department of Veterans Affairs (VA) Roanoke, Virginia,
Regional Office (RO). That decision, in pertinent part,
denied service connection for bilateral retropatellar pain
syndrome, back pain and shoulder pain. Service connection
for an unfused nonunion old fracture of the left navicular
bone was granted, and an initial rating of 20 percent was
assigned.
The veteran testified before the undersigned Veterans Law
Judge at a hearing held at the central office in March 2001.
In a December 2002 rating decision, the RO granted service
connection for enteropathic arthritis of the right shoulder,
with avascular necrosis of the right humeral head, the left
shoulder, knees, hips and low back as secondary to the
veteran's service-connected Crohn's disease. An initial
rating of 20 percent was assigned. In a June 2003 statement
to the Board, the veteran's representative indicated that a
higher rating was warranted for these service-connected
conditions. In addition, the veteran's representative
indicated that these conditions should be rated separately.
The Board notes that the grant of service connection
represents a full grant of the benefits sought on appeal.
The issue of entitlement to an increased initial rating for
the service-connected disabilities is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. All evidence necessary for review of the issue currently
before the Board has been obtained, and the VA has satisfied
the duty to notify the veteran of the law and regulations
applicable to the claim, the evidence necessary to
substantiate the claim, and what evidence was to be provided
by the veteran and what evidence the VA would attempt to
obtain on his behalf.
2. With regard to the claims for entitlement to service
connection for bilateral retropatellar pain syndrome, a
disorder manifested by low back pain, and a disorder
manifested by bilateral shoulder pain, all claimed as
secondary to service-connected Crohn's disease, prior to
final action by a Veterans Law Judge, these claims were
granted by the RO.
3. With regard to the aforementioned claims, the action
taken by the RO represents a full grant of the benefits
sought on appeal.
4. The veteran is right handed.
5. The evidence of record does not reasonably show that an
unfused, non-union old fracture of the left (minor extremity)
navicular (scaphoid) bone, with degenerative changes, is
productive of ankylosis of the left wrist in any position.
6. There is no showing of involvement of the lower half of
the radius and the veteran has been noted to have good range
of motion of the wrist.
CONCLUSIONS OF LAW
1. The appeal for entitlement to service connection for
bilateral retropatellar pain syndrome, claimed as secondary
to service-connected Crohn's disease, fails to allege
specific error of fact or law. 38 U.S.C.A. §§ 7102, 7104,
7105, 7107 (West 2002); 38 C.F.R. §§ 19.4, 20.101, 20.204
(2002).
2. The appeal for entitlement to service connection for a
disorder manifested by back pain, claimed as secondary to
service-connected Crohn's disease, fails to allege specific
error of fact or law. 38 U.S.C.A. §§ 7102, 7104, 7105, 7107
(West 2002); 38 C.F.R. §§ 19.4, 20.101, 20.204 (2002).
3. The appeal for entitlement to service connection for a
disorder manifested by bilateral shoulder pain, claimed as
secondary to service-connected Crohn's disease, fails to
allege specific error of fact or law. 38 U.S.C.A. §§ 7102,
7104, 7105, 7107 (West 2002); 38 C.F.R. §§ 19.4, 20.101,
20.204 (2002).
4. An unfused, non-union old fracture of the left navicular
bone, with degenerative changes, is not more than 20 percent
disabling according to the schedular criteria. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.10, 4.45, 4.59,
4.71a, Diagnostic Codes 5213, 5214, 5215 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
As an initial matter, the Board observes that, during the
pendency of this appeal, substantial revisions have been made
to the laws and regulations concerning the VA's duties in
developing a claim for a VA benefit. On November 9, 2000,
the Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-
475, 11 Stat. 2096 (2000) was enacted. The VCAA redefines
the VA's obligations with respect to its duty to assist the
claimant with the development of facts pertinent to a claim
and includes an enhanced duty to notify the claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. This change in the law is applicable
to all claims filed on or after the date of enactment of the
VCAA or filed before the date of enactment and not yet final
as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002). See also Karnas v. Derwinski,
1 Vet. App. 308, 312-313 (1991).
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620-45,623 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.156(a), 3.159 and
3.326(a) (2002)). These regulations, likewise, apply to any
claim for benefits received by the VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by the VA as of that date, with the exception of the
amendment to 38 C.F.R. § 3.156(a) (relating to the definition
of new and material evidence) and to the second sentence of
§ 3.159(c) and § 3.159(c)(4)(iii) (pertaining to VA
assistance in the case of claims to reopen previously denied
final claims), which apply to any application to reopen a
finally decided claim received on or after August 29, 2001.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the pertinent aspects of
the veteran's claim, and no further assistance is required in
order to comply with the VA's statutory duty to assist him
with the remaining issue in which a decision is being
rendered. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R.
§ 3.159 (2002). Specifically, the RO has obtained records
corresponding to medical treatment reported by the veteran
and has afforded him a VA examination to assess the severity
of his service-connected disorder. There is no indication of
additional relevant medical evidence that has not been
obtained by the RO to date with regard to this claim.
The VA's duty to notify the veteran of the evidence necessary
to substantiate his claim has also been met, as the RO
informed him of the need for such evidence in a May 2001
letter. See 38 U.S.C.A. § 5103A (West 2002). This letter,
which includes a summary of the newly enacted provisions of
38 U.S.C.A. §§ 5103 and 5103A, also contains a specific
explanation of the type of evidence necessary to substantiate
the veteran's claim, as well as which portion of that
evidence (if any) was to be provided by him and which portion
the VA would attempt to obtain on his behalf. The specific
requirements for a grant of the benefit sought on appeal will
be discussed in further detail below, in conjunction with the
discussion of the specific facts of this case. See generally
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. Service Connection for Bilateral Retropatellar Pain
Syndrome,
a Disorder Manifested by Back Pain, and a
Disorder Manifested by Bilateral Shoulder Pain,
Secondary to Crohn's Disease
All questions of law and fact necessary to a decision by the
Secretary of Veterans Affairs under a law that affects the
provision of benefits by the Secretary to veterans or their
dependents or survivors are subject to review on appeal to
the Secretary. Decisions in such appeals are made by the
Board of Veterans' Appeals.
In its decisions, the Board is bound by applicable statutes,
the regulations of the Department of Veterans Affairs and
precedent opinions of the General Counsel of the Department
of Veterans Affairs. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.
The principal functions of the Board are to make
determinations of appellate jurisdiction, consider all
applications on appeal properly before it, conduct hearings
on appeal, evaluate the evidence of record, and enter
decisions in writing on the questions presented on appeal.
38 U.S.C.A. §§ 7102, 7104, 7107; 38 C.F.R. § 19.4.
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. 38 C.F.R. § 20.202. The
requested benefits for which service connection was sought on
appeal were granted by the Roanoke, Virginia, RO in December
2002. Hence, there remain no allegations of errors of fact
or law for appellate consideration as to these matters.
Stated otherwise, there is no "justiciable case or
controversy" remaining before the Board. Accordingly, the
Board does not have jurisdiction to review the matter on
appeal and the issues are dismissed without prejudice.
III. Increased Rating for Unfused Non-Union Old Fracture
of the Left Navicular Bone
Factual Background
Service medical records indicate that the veteran was
diagnosed with an undisplaced fracture of the left scaphoid,
which was felt to be a non-union in June 1992. Service
medical records also note that the veteran is right handed.
An April 1998 VA examination report noted that the veteran
reported occasional sharp pain in his left wrist.
Examination of the left wrist showed a small bony
protuberance on the lateral aspect. Dorsiflexion was 50
degrees. Palmar flexion was 80 degrees. Radial deviation
was 25 degrees. Ulnar deviation was 35 degrees. Movements
of the wrist did not appear to cause any pain. There was no
tenderness over the left wrist. The diagnosis was slight
bony deformity of the left wrist. X-rays taken in
conjunction with the VA examination showed an unfused old
fracture of the navicular bone with degenerative changes.
A November 1998 rating decision granted service connection
for an unfused old fracture of the navicular bone with
degenerative changes. An initial disability rating of 20
percent was assigned under Diagnostic Code 5212.
The veteran testified before a hearing officer at a hearing
held at the RO in June 1999. He reported that he had pain in
his left wrist when he tried to bend it. He stated that he
occasionally wore a brace to keep his wrist sturdy.
The veteran testified before the undersigned Veterans Law
Judge at a hearing held at the central office in March 2001.
He stated that he had a limited range of motion in his left
wrist. He also indicated that he had weakness in his wrist
and was unable to hold anything heavy in the left hand.
A September 2002 VA examination report noted that the
examiner had reviewed the claims file. On examination, the
left wrist and forearm had full pronation and supination.
Dorsiflexion was 60 degrees. Palmar flexion was 60 degrees.
The examiner stated that the veteran had "amazingly a good
range of motion of the left wrist joint." X-ray of the left
wrist showed osteoporosis of the radial and carpal bones. A
collapsed proximal role of the proximal row of the wrist
joint was noted with incongruity of the wrist joint and clasp
of the scaphoid. There was proximal migration of the
capitate. The diagnosis was post-traumatic osteoarthritis,
left wrist, secondary to old nonunion and failed fusion of
the scaphoid.
Criteria
Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155. Separate diagnostic codes identify the various
disabilities.
The assignment of a particular Diagnostic Code is dependent
on the facts of a particular case. See Butts v. Brown, 5
Vet. App. 532, 538 (1993). One Diagnostic Code may be more
appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis,
and demonstrated symptomatology. In reviewing the claim for
a higher rating, the Board must consider which Diagnostic
Code or Codes are most appropriate for application of the
veteran's case and provide an explanation for the conclusion.
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
Moreover, in the recent case of Fenderson v. West, 12 Vet.
App. 119 (1999), the Court held that in appeals from an
initial assignment of a disability evaluation, ratings may be
staged (i.e., different ratings may be assigned for different
periods of time. The rule of Francisco v. Brown, 7 Vet. App.
55 (1994), that where an increase in the disability rating is
at issue, the present level of disability is of primary
concern, does not apply in such cases.
Nonunion in the lower half of the radius, with false
movement, without loss of bone substance or deformity,
warrants a 20 percent rating in the minor extremity and a 30
percent rating in the major extremity. 38 C.F.R. § 4.71a,
Code 5212 (2002). Nonunion in the lower half, with false
movement, with loss of bone substance and marked deformity,
warrants a 30 percent rating in the minor extremity and a 40
percent rating in the major extremity. Id.
A 20 percent rating is assigned for limitation of pronation
of either arm with motion lost beyond the last quarter of arc
such that the hand does not approach full pronation. Where
motion is lost beyond middle of arc a 20 percent rating is
assigned if it is the minor arm, and a 30 percent evaluation
is assigned if it is the major arm. Loss of bone fusion
resulting in the hand being fixed near the middle of the arc
of moderate pronation warrants a 20 percent rating for either
forearm. Where the hand is fixed in full pronation 20
percent is assigned for the minor arm and 30 percent is
assigned for the major arm. Where the hand is fixed in
supination or hyperpronation, a rating of 30 percent is
warranted for the minor arm and 40 percent is warranted for
the major arm. 38 C.F.R. § 4.71a Diagnostic Code 5213
(2002).
Ankylosis of the wrist in a favorable position in 20 degrees
to 30 degrees of dorsiflexion is evaluated as 30 percent
disabling if the major wrist is affected and 20 percent
disabling if the minor wrist is affected. If not in the
favorable position, a 30 percent evaluation is assigned for
the minor wrist and a 40 percent evaluation is assigned for
the major wrist. Ankylosis in an unfavorable position, in
any degree of palmar flexion or with ulnar or radial
deviation is evaluated as 50 percent disabling when there is
involvement of the major wrist and 40 percent disabling where
the minor wrist is affected. 38 C.F.R. § 4.71a, Diagnostic
Code 5214 (2002).
A 10 percent evaluation is provided for limitation of
dorsiflexion of the minor or major wrist to less than 15
degrees or for limitation of palmar flexion in line with the
forearm. 38 C.F.R. § 4.71a Diagnostic Code 5215. This is
the maximum rating available under this Diagnostic Code.
In cases of evaluation of orthopedic injuries there must be
adequate consideration of functional impairment including
impairment from painful motion, weakness, fatigability, and
incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59;
DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical nature
of the particular disability to be rated under a given
diagnostic code determines whether the diagnostic code is
predicated on loss of range of motion. If a musculoskeletal
disability is rated under a specific diagnostic code that
does not involve limitation of motion and another diagnostic
code based on limitation of motion may be applicable, the
latter diagnostic code must be considered in light of
sections 4.40, 4.45, and 4.59. VAOPGCPREC 09-98 (August 14,
1998).
In cases of functional impairment, evaluations are to be
based upon lack of usefulness, and medical examiners must
furnish, in addition to etiological, anatomical,
pathological, laboratory and prognostic data required for
ordinary medical classification, a full description of the
effects of the disability upon the person's ordinary
activity. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology, and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. A little used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like. 38 C.F.R. § 4.40.
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: (a) less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) more movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) excess fatigability;
(e) incoordination, impaired ability to execute skilled
movements smoothly; and (f) pain on movement, swelling,
deformity or atrophy of disuse. Instability of station,
disturbance of locomotion, interference with sitting,
standing and weight-bearing are related considerations. For
the purpose of rating disability from arthritis, the knee is
considered a major joint. 38 C.F.R. § 4.45.
With any form of arthritis, painful motion is an important
factor of disability, the facial expression, wincing, etc.,
on pressure or manipulation, should be carefully noted and
definitely related to affected joints. Muscle spasm will
greatly assist the identification. The intent of the
schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is
the intention to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimum compensable rating for the joint.
Crepitation either in the soft tissues such as the tendons or
ligaments, or crepitation within the joint structures should
be noted carefully as points of contact which are diseased.
Flexion elicits such manifestations. The joints involved
should be tested for pain on both active and passive motion,
in weight bearing and nonweight-bearing and, if possible,
with the range of the opposite undamaged joint. 38 C.F.R.
§ 4.59.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Analysis
After having carefully reviewed the evidence of record, the
Board finds that the evidence does not support an initial
rating in excess of 20 percent for an unfused, non-union old
fracture of the left navicular bone, with degenerative
changes. Initially, the Board notes that the veteran is
right-handed.
For purposes of rating the veteran's current disability,
higher ratings are only available under either Diagnostic
Codes 5213 or 5214. In this instance, Diagnostic Code 5212
is inapplicable as the evidence does not show that the
veteran's left wrist disorder involves a nonunion of the
radius; hence, a higher rating is not warranted under
Diagnostic Code 5212. See 38 C.F.R. § 4.71a, Diagnostic Code
5212. Additionally, as the veteran is already in receipt of
a disability evaluation in excess of the maximum rating that
would be available, a higher rating is not warranted under
Diagnostic Code 5215. See 38 C.F.R. § 4.71a, Diagnostic Code
5215.
The September 2002 VA examiner specifically stated that the
veteran had "amazingly a good range of motion of the left
wrist joint." Accordingly, a 30 percent rating is not
warranted under Diagnostic Code 5214 as the evidence of
record does not indicate that the veteran's left wrist is
ankylosed to any degree. See 38 C.F.R. § 4.71a, Diagnostic
Code 5214. In addition, there is no evidence of record
indicating that the veteran has a loss of bone fusion such
that his hand is fixed in supination or hyperpronation.
Accordingly, a 30 percent rating is not warranted under
Diagnostic Code 5213. See 38 C.F.R. § 4.71a, Diagnostic Code
5213. The Board also finds that the evidence does not raise
a question that a rating higher than 20 percent is warranted
for any period of time from the veteran's claim to the
present time so as to warrant a staged rating due to
significant change in the level of disability.
Additionally, an increased evaluation may be based on either
actual limitation of motion or the functional equivalent of
limitation of motion due to less or more movement than
normal, weakened movement, excess fatigability,
incoordination, and pain on movement. See DeLuca, 8 Vet.
App. 202 (discussing 38 C.F.R. §§ 4.40, 4.45). The veteran
has complaints of pain and weakness involving the left
(minor) wrist. A 20 percent evaluation contemplates pain on
motion and contemplates exacerbations of the service-
connected disability. See 38 C.F.R. § 4.1(veteran's
disability evaluation encompasses compensation for
considerable loss of working time from exacerbations or
illnesses). The Board finds that the functional impairment
described in the examination reports and by the veteran is
such that no more than a 20 percent evaluation is warranted.
The above decision is based on the VA Schedule of Rating
Disabilities. In Floyd v. Brown, 9 Vet. App. 88, 96 (1996),
the Court held that the Board does not have jurisdiction to
assign extra-schedular evaluations under 38 C.F.R.
§ 3.321(b)(1), in the first instance. However, there is no
evidence that the veteran's unfused, non-union old fracture
of the left navicular bone alone has caused such marked
interference with employment or necessitated frequent periods
of hospitalization for the periods at issue such as would
render impractical the application of the regular schedular
standards. In the absence of such factors, the Board is not
required to remand this matter to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v.
Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8
Vet. App. 218, 227 (1995).
ORDER
The appeal for entitlement to service connection for
bilateral retropatellar pain syndrome, claimed as secondary
to service-connected Crohn's disease, is dismissed.
The appeal for entitlement to service connection for a
disorder manifested by back pain, claimed as secondary to
service-connected Crohn's disease, is dismissed.
The appeal for entitlement to service connection for a
disorder manifested by bilateral shoulder pain, claimed as
secondary to service-connected Crohn's disease, is dismissed.
Entitlement to an increased initial rating for an unfused,
non-union old fracture of the left navicular bone, with
degenerative changes, currently evaluated as 20 percent
disabling, is denied.
____________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.